Schwartz et al v. Dex Media, Inc.

Filing 36

ORDER granting 17 Defendant Dex Media, Inc.'s Motion to Sever. Plaintiff George Giles' claims are SEVERED from the present action. The Clerk of Court is DIRECTED to assign a new case number for Plaintiff George Giles' separate a ction. The new separate action shall be assigned to the Undersigned and United States Magistrate Judge Carol Mirando. The Clerk of Court is DIRECTED to open the new case with the Complaint (Doc. 1-2) from this case, and to docket this Opinion and Or der with the new case file. Plaintiff Giles is DIRECTED to file an amended complaint to appropriately plead his case as a single plaintiff on or before May 21, 2018 using the new case number. Plaintiffs Charles Schwartz and James Volkert are DIRECTED to file an amended complaint to appropriately plead their case on or before May 21, 2018. Defendant Dex Media shall file an answer to the amended complaints on or before June 4, 2018. Signed by Judge Sheri Polster Chappell on 5/7/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHARLES N SCHWARTZ, JAMES R
VOLKERT and GEORGE W GILES,
Petitioners,
v.

Case No: 2:18-cv-105-FtM-38CM

DEX MEDIA, INC.,
Respondent.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Dex Media, Inc.’s Motion to
Sever (Doc. 17), Plaintiffs Charles Schwartz, James Volkert, and George Giles’
Memorandum in Opposition (Doc. 26), and Dex’s Reply (Doc. 35). This matter is ripe for
review.
BACKGROUND
This discrimination and retaliation action began in Florida state court. (Doc. 1-2).
Dex removed the action to the Northern District of Florida based on original subject matter
jurisdiction. (Doc. 1). That court then transferred the suit here. (Doc. 12). Plaintiffs’ suit
contains three claims. (Doc. 1-2). First, Giles sues for disability discrimination under the
Florida Civil Rights Act and the Americans with Disabilities Act.

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(Doc. 1-2 at 6-7).

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Second, Giles, Schwartz, and Volkert sue for age discrimination under the Florida Civil
Rights Act and seek injunctive relief under the Age Discrimination in Employment Act.
(Doc. 1-2 at 8-9). Third, Giles and Schwartz sue for retaliation. (Doc. 1-2 at 9-10). Dex
now seeks to sever Giles’ claims from Volkert’s and Schwartz’s claims. Plaintiffs oppose.
For the following reasons, the Court grants Dex’s Motion.
DISCUSSION
Before addressing the merits, the Court must resolve the parties’ disagreement on
whether Florida or federal procedural rules apply. (Docs. 26; 35). Generally, the Federal
Rules of Civil Procedure “apply to a civil action after it is removed from state court.” Fed.
R. Civ. P. 81(c)(1). Yet Plaintiffs argue that Florida joinder rules apply. (Doc. 26 at 2-8).
To support their argument, Plaintiffs rely on an Eastern District of Kentucky case that
discusses, without deciding, applying state or federal joinder rules after removal in the
fraudulent misjoinder2 context. See Asher v. Minnesota Mining and Mfg. Co., CIV.A.
04CV522KKC, 2005 WL 1593941, at *6 (E.D. Ky. June 30, 2005). In Asher, the court
noted the “majority of courts that have adopted the fraudulent misjoinder doctrine have
determined that the issue of whether claims have been misjoined should be evaluated
under state procedural law rather than federal law.” Asher, 2005 WL 1593941, at *6. The
court highlighted the potential tension between state and federal court joinder rules in a
diversity action. See Id. at *6. This possible tension is best explained through an
example: if a diversity defeating party’s claims were properly joined under state rules but

“The doctrine of fraudulent misjoinder applies ‘where a diverse defendant is joined with
a nondiverse defendant as to whom there is no joint, several or alternative liability and
where the claim against the diverse defendant has no real connection to the claim against
the nondiverse defendant.’” Bollea v. Clem, 937 F. Supp. 2d 1344, 1350 (M.D. Fla. 2013)
(quoting Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)).
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fraudulently misjoined under federal rules, a conflict may arise if a federal court severs
those claims after removal to create jurisdiction where jurisdiction did not exist before
severance. According to the courts quoted in Asher, this outcome may frustrate the
general rule that the Federal Rules of Civil Procedure may not extend or limit jurisdiction.
See Id. at *6; see also Fed. R. Civ. P. 82 (“These rules do not extend or limit the
jurisdiction of the district courts or the venue of actions in those courts.”).
Yet that logic is inapplicable here. Unlike Asher, the relevant issue here is whether
the federal or Florida rules of civil procedure apply to a motion to sever where original
subject matter jurisdiction exists. (Doc. 1). Continued joinder or severance of Giles’
claims will not end this Court’s jurisdiction, and the potential conflict highlighted in Asher
does not exist. Even if this Court faced a similar dilemma as the Asher court, the Eleventh
Circuit applied federal procedural rules in its fraudulent misjoinder opinion.3 See Tapscott
v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other
grounds by Cohen v. Off. Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Therefore, the
Court will apply federal rules.
The Court now turns to Dex’s Motion to Sever. A district court “may sever any
claim against any party.” Fed. R. Civ. P. 21. The district court “has broad discretion when
deciding whether to sever claims under Rule 21 and may consider factors such as judicial
economy, case management, prejudice to parties, and fundamental fairness.” Potts v. B
& R, LLC, 8:13-CV-2896-T-27TGW, 2014 WL 1612364, at *3 (M.D. Fla. Apr. 21, 2014).
And under Rule 20, parties may join if “(A) they assert any right to relief jointly,
severally, or in the alternative with respect to or arising out of the same transaction,

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Admittedly, Tapscott never addressed the issue of federal or state rules head on. See
Tapscott, 77 F.3d at 1360 (11th Cir. 1996).

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occurrence, or series of transactions or occurrences; and (B) any question of law or fact
common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). A party must
meet both joinder prongs. Fleming v. Home Depot U.S.A., Inc., 96-6560-CIV, 1998 WL
1674544, at *1 (S.D. Fla. July 8, 1998). Under the first prong, “[t]o arise from the same
transaction, occurrence, or series of transactions or occurrences, claims must be ‘logically
related.’” Edwards-Bennett v. H. Lee Moffitt Cancer and Research Inst., Inc., 8:13-CV00853-T-27, 2013 WL 3197041, at *1 (M.D. Fla. June 21, 2013) (citation omitted). Courts
must take a broad realistic approach to the logical relationship test, but claims must still
share operative facts. See Rhodes v. Target Corp., 313 F.R.D. 656, 659 (M.D. Fla. 2016).
Starting with the first prong, the Court must determine if Giles’ claims arise “out of
the same transaction, occurrence, or series of transactions or occurrences” as Volkert’s
or Schwartz’s claims. While Giles’ claims share some of the same legal theories of age
discrimination and retaliation as the other Plaintiffs, his claims arise out of a unique set of
facts. (Doc. 1-2). He alone underwent neck surgery, failed to meet his specific job
performance goals, was placed on a performance improvement plan, and was “wrongfully
terminated” after failing to meet his sales numbers. (Doc. 1-2 at 7-11). Volkert and
Schwartz have no similar allegations. Further, unlike Giles, Volkert and Schwartz held
management positions, were demoted, and were “constructively terminated” months after
Giles. (Doc. 1-2 at 7-11). The factual scenarios are too different, and the similarities too
slim.

The similarities are limited to Dex’s employment of the Plaintiffs, Dex’s Vice

President mistreatment of the Plaintiffs, and Plaintiffs’ alleged age discrimination. (Doc.
1-2 at 7-11). At bottom, Volkert and Schwartz’s claims do not share operative facts with
Giles’ claims. So the first prong for permissive joinder under Rule 20 is not met. Because

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Giles’ claims do not meet the first prong of the analysis, the Court need not address the
second.
Even if Giles’ claims were properly joined under Rule 20, the Court would still sever
the claims. See Rhodes, 313 F.R.D. at 659 (noting that a court still has discretion to sever
claims if the permissive joinder requirements are met). As stated, a court can consider
“factors such as judicial economy, case management, prejudice to parties, and
fundamental fairness” under Rule 21. Potts, 2014 WL 1612364, at *3. Here, the differing
facts underlying Plaintiffs’ claims may cause unnecessary prejudice and unfairness to
Dex at trial. A jury considering the claims would need to consider a multitude of issues
associated with only Giles. Indeed, Giles’ neck surgery, placement on a performance
plan, and later termination for failure to meet his sales numbers do not affect the other
Plaintiffs and may cause jury confusion.
If that were not enough, Dex submitted an affidavit from Dex’s Vice President that
showed Volkert was Giles’ direct supervisor and began Giles’ termination. (Doc. 17-1).
Dex argues that Volkert’s testimony on Giles’ discharge may be tainted by Volkert’s stake
in supporting his claim against Dex. (Doc. 17 at 10-11). While this potential bias in
testimony is alone insufficient, it coupled with the likelihood of jury confusion and needless
prejudice necessitates severing Giles’ claims. And Plaintiffs have identified no potential
prejudice that would result if the claims were severed. Thus, the Court will sever Giles’
claims from Volkert’s and Schwartz’s claims.
Accordingly, it is now
ORDERED:
(1) Defendant Dex Media, Inc.’s Motion to Sever (Doc. 17) is GRANTED. Plaintiff
George Giles’ claims are SEVERED from the present action.

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(2) The Clerk of Court is DIRECTED to assign a new case number for Plaintiff
George Giles’ separate action. The new separate action shall be assigned to
the Undersigned and United States Magistrate Judge Carol Mirando.
(3) The Clerk of Court is DIRECTED to open the new case with the Complaint
(Doc. 1-2) from this case, and to docket this Opinion and Order with the new
case file.
(4) Plaintiff Giles is DIRECTED to file an amended complaint to appropriately plead
his case as a single plaintiff on or before May 21, 2018 using the new case
number.
(5) Plaintiffs Charles Schwartz and James Volkert are DIRECTED to file an
amended complaint to appropriately plead their case on or before May 21,
2018.
(6) Defendant Dex Media shall file an answer to the amended complaints on or
before June 4, 2018.
DONE and ORDERED in Fort Myers, Florida this 7th day of May 2018.

Copies: United States Magistrate Judge Carol Mirando
All Parties of Record

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